The Consultant's Desk

The Consultant's Desk
Poring over the details on your behalf

Tuesday, October 31, 2017

A VITAL Organization

There are times when we need to recite the meaning of the associations we've developed. After some time passes, we forget the fervor that went into striving to earn the distinctions those associations merit and symbolize. The initials become tantamount to year-old tattoos. We're no longer aware that they're even there; they're simply part of who we are.

An employer needs to know (or is that "wants" to know) what the initials "C.A.C." mean. Well, if you look up the organization that issues that certification, you'll find it is issued by the California Staffing Professionals Association (CSP), the California complement of the American Staffing Association (ASA).

Check the CSP home page and you'll discover they bill themselves as a "VITAL" organization. But all of those letters are capitalized. That means "VITAL" is an acronym. What the letters stand for are concepts that are representative of what the organization is and qualities it offers.






There are a number of certifications that are available through evaluative testing performed by both the national as well as the state-level organizations. Successful performance will earn the applicant a particular designation to represent their knowledge and expertise. The ASA lists the types of certifications available through them. The CSP (Certified Staffing Professional) used to be the initials for the credential earned through the CSP organization. That state designation changed its name circa 2000 and became known as CAC or California Accredited Consultant. It still represents the same accomplishments. The rigors are limited to California laws instead of state as well as federal laws. It still requires knowledge of ethical practices.

The CSP has a continuing education requirement; the CAC does not. (Please, don't ask me why.) In a way, the lack of continuing education requirement is a bit disappointing. But when you consider that one who is passionate about their profession will be taking as many steps as possible to remain abreast of industry practices and knowledge, it makes sense that the requirement no longer exists. Additionally, one who is actively practicing will in all likelihood also be attending chapter meetings and thereby staying up to date on innovations through the educational section of each meeting.

You may be wondering about the significance of certifications and credentials. (Maybe you're not.) Unearthing the language that provides the official CSP explanation of their CAC brought me to a site called Designation Check. They have a page, Credentials Explained, where the various types of credentials are explained, whether there are any differences between a "designation" and a "certification", and more. It's useful to gain an understanding and appreciation of the document (or the initials) that represents the distinction the person holds. It appears Designation Check's specialty is in the area of finance. The information they provide is reliable with regard to certifications for any industry. Certification is a standard practice for any profession.

Back to being a VITAL organization. Back to an examination of whether you've found a consultant. Some have dotted all their "i"s and crossed all their "t"s. They've earned their credential through a valid organization that maintains their standards over time. NOLO tells us about other aspects of starting a consulting business in California. One of them is having a license, which can be a simple as obtaining a fictitious business name (a "dba") through the county where the business is being conducted. It's good for five years. It's required because it helps the public realize it is a business they're dealing with or a group of owners who are operating under a particularly formulated name; it isn't the name of an individual. Also, the dba basically tells the (local) government that this is a business and it may pursue and defend its rights in a court of law under the registered name of the business. Otherwise, the individual doing business under that name has no standing. (Further explanation is required but in another writing.) Once the registration is renewed, so is the standing. The legitimacy of the business is otherwise not affected.

Likewise, if the certifying organization has stopped requiring continuing education and proof of it, the prudent practitioner will continue to enhance their knowledge through various alternative (but reliable) channels and keep track of those "credits". They will continue to be vital, especially if they've needed to step away from things for one reason or another and later decide to re-enter the field.

As with any other profession when you're evaluating the consultant, you'll want to do some screening. Pay attention to what they've been doing in lateral areas. Should you decide to hire them, you'll start them on what should be manageable and then increase the difficulty level as your relationship evolves and your organization can become VITAL because of the quality input you've chosen.

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Thursday, October 26, 2017

More Workplace Abuse Resources

It's with great dismay that a particular page needs to be closed. The reason for the reluctance is because the content is so useful (and I need the laptop resources). The site is called "When An Abuser Goes to Work" and is authored by Patricia G. Barnes, J.D. Patricia also focuses on age discrimination at Age Discrimination in Employment. Unlike Chai Feldblum, Patricia has not been an EEOC Commissioner. But she has been a judge and is a lawyer. Their advocacy is Title VII related but on specific aspects of enforcement of rights for particular constituents.

When you visit her LinkedIn profile, you'll notice that Chai has a strong leaning toward supporting gay and lesbian rights. She is a contributor to a book title on religion and same-sex marriage. She also keeps her followers up to date on the outcome of EEOC age discrimination cases (that were not under her purview).

Patricia has written on a wide swath of Title VII issues, in addition to workplace abuses. Yes, it is entirely possible to visit her blog to learn what she's published. But I'd like to preserve at least some of those titles here (until I can move them to my website's Library) where we'll have a quick reference to her insights on the subjects.

Pat Barnes' list of aggressive behaviors in the workplace is not only enlightening, it's what's been considered offensive and abusive over time. Failing to respond to phone calls and messages is the classic. Recruiters (both retained and staffing industry) use the excuse that they're too busy. Too busy to get someone (a motivated worker) employed? No one comes up with a spoken excuse for interrupting. However, the underlying message is what the person has to say isn't important. The other unspoken message is the one doing the interrupting is entitled to do so; they are privileged.

There are times when an interruption is a kind gesture. The train of thought is meandering or drifting into whining. The speaker needs to get refocused. Sometimes they may be exhibiting distress and needs to regather their thoughts. Many times, unfortunately, none of those reasons are the case. There was no kindness intended. The one doing the interrupting is simply showing they have very little regard for the one who was speaking.

There are a lot of behaviors that demonstrate abuse in the workplace. Perhaps taking in what these two authors have to say on the subject will help make us more aware and more inclined to discourage the behavior.

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Wednesday, October 25, 2017

Establishing a Prima Facie Case

Here it is. October, the Awareness Month. Breast Cancer, Non-visible Disabilities, Domestic Violence all earn some recognition in this month. Although all three deserve recognition, Domestic Violence is the one I support. As time passes, I wince at the fact that those with disabilities, especially non-visible disabilities are overlooked in many of the conversations about preparedness, equality, inclusion, and accommodation. Unfortunately, the population with all manner of disabilities keeps growing. Perhaps part of that growth is caused by one of the other members of this month's trio, also known as "abuse."

It was because I was reviewing some old contentthat discusses the essentials of making a case (the guidelines) that I discovered one of the links was stale and needs to be updated. The link is contained in an article about abuse in the workplace and the necessity to establish a prima facie case in order for the case to prevail. In that article, it was noted that "establishing that an abusive condition exists in the workplace, it's necessary to make certain you have the elements. The elements of this are not identical for every situation." Hmmm. has removed the page that describes those elements. Perhaps the reason for the removal is because the basis is different and depends on the situation to be proved.

It would be helpful to have a list of the typical instances when a workplace prima facie case needs to be established. First, however, let us define what the term "prima facie" means. And because I have several other unrelated projects running with the same deadline, I'm going to be sloppy today. No discussion of the issues. Instead, the links to more information are provided in this writing. Items

First, there's the definition of the term. "Prima facie" is a Latin term that means "on its face" or "at first glance." In court, a litigant makes a prima facie case by presenting evidence that discrimination occurred.

Title VII Scenarios

What's a Prima Facie Case of Discrimination Under Title VII The burden of proof is first the employee's responsibility to establish:

The elements of a prima facie discrimination case are:
  • The employee is in a protected class (based on race, gender, and so on).
  • The employee was qualified for the position. For example, an applicant who wasn't hired would have to show that he met the requirements for the job; an employee who was fired would have to show that she was performing the job adequately and meeting the employer's expectations.
  • The employee was rejected for the position -- in other words, the applicants was not hired, or the employee was not promoted or was fired.
  • An employee outside of the protected class was selected for the position, or the employer continued to look for candidates. For example, an employee who claims she was not promoted because she was a women could show that a man was promoted instead, or that the company continued to look for internal candidates after rejecting her.

The responsibility then shifts to the employer to present evidence that discrimination was not the case, that there was equity.

Under the Americans with Disabilities Act

Making a Prima Facie Case of Discrimination Under the ADA explains that under ADA, things shift. The rules are based on local court standards but the prima facie case essentials are basic.

Generally speaking, an employee must present evidence of three facts to bring a prima facie case:

  • The employee had a disability, had a history of disability, or was perceived by the employer as having a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. For more information on what qualifies as a disability under the ADA, see What Is a Disability Under the Americans with Disabilities Act (ADA)?
  • The employee was qualified for the position and able to perform its essential functions, with or without a reasonable accommodation. Employers are not required to hire or retain employees who can't do the job; only qualified employees are protected from discrimination under the ADA. To learn about qualifications and essential functions, see Essential Job Functions and the ADA.
  • The circumstances suggest that the employee was subjected to a negative job action based on disability.

For the case to survive, the disability needs to be recognized as a legitimate one of those currently recognized as physical or mental, as well as what is considered a substantial limitation. You will want to also consider what is deemed a major life activity. Also taken into consideration is whether the employee can perform the essential functions of the job. I recently talked about amount and length of experience in determining whether a person is actually qualified. Workers should pay close attention to this distinction of the Act, whether it relates to age, disability, or gender. It will have a bearing on whether the negative action was justified. How well the candidate can establish that they meet the criteria for being qualified is their responsibility if they want to be hired.

Hostile Work Environment - Race

When it comes to hostile work environment, based on race, there are tricky questions that need to be satisfactorily answered in order to bring a cause of action. The Gregory Hall law firm tells us about the five elements of the prima facie case:

  • the plaintiff was a member of a protected class;
  • the plaintiff was subjected to unwelcome harassment;
  • the harassment was race-based;
  • the harassment unreasonably interfered with the plaintiff’s work performance by creating an environment that was intimidating, hostile, or offensive; and
  • the employer was liable for the harassing conduct.

The reason this gets tricky is because, as pointed out by Mr. Hall, there are phrases that need to be carefully examined in order to establish the case. The phrases and terms are things such as "substantially interfered" with performing the work. There is also being able to establish the "totality of the circumstances" as well as whether the employer knew or should have known and failed to take prompt remedial action. (Case law relating to these concepts is provided in his article.)

It is worth noting that the U.S. Ninth Circuit Court of Appeals issued a Comment that considered race and sexual harassment and said, ". . . the Committee does not discern any conceptual difference between harassment because of sex and harassment because of race or any other protected status. Accordingly, the following instructions are applicable to harassment based on race, color, sex, religion and national origin."

As to remedies for racial discrimination, it's worth spending some time considering what LegalMatch has to say. As they discuss the last element to be proved, it is significant that the employer rejected one candidate but continued seeking a person to hire who has the same qualifications as the one who was rejected. LegalMatch lists the elements as:

In order to establish a prima facie case of employment discrimination, courts will generally require proof that:

The plaintiff was a member of a “protected group” The plaintiff was qualified in all respects for the job they sought The plaintiff was rejected in spite of being fully qualified After the rejection, the employer continued seeking for applicants with the plaintiff’s qualifications

Emphasis supplied

Although these items discuss workplace harassment and discrimination, it's prudent to consider how these standards apply to places that are nonprofit, spiritual, and fraternal organizations. In other words, are those types of organizations free to use practices that are ordinarily violations of civil rights?

Sexual Harassment

And then there's the matter of sexual harassment. Wiggins Law tells us there are four elements involved in a sexual harassment case. The situation is because of the plaintiff’s gender, must be severe or pervasive, and must be unwelcome are the first elements of a sexual harassment claim. Next, the behavior is severe or pervasive. According to Wiggins' analysis, "Courts apply the phrase 'hostile environment' to lawsuits assessing behavior that has constructively changed the complainant’s working conditions." Please be aware that there is a reason why courts placed the severe or pervasive requirement on these cases. To leave the matter open to any and all conduct would be to stifle the occasional teasing and camaraderie that's intended to build an atmosphere of congeniality and support. So, "the “severe or pervasive” requirement is meant to 'filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing,' limiting actionable claims to encompass only 'extreme' conduct."

The third element of a sexual harassment case relates to the fact that the conduct is unwelcome. However, the fourth element has been modified as time has passed. No longer is the requirement of showing quid pro quo a viable element for establishing employer liability. The "who" of the conduct and vicarious liability are what do come into question. In this regard, Wiggins tells us, "liability depends upon who committed the harassment, whether the harassment resulted in a tangible employment action, and the employer’s response to the harassment."

Race as Well as Sex

A 1984 Harvard Business Review article takes a close look at two different instances of discrimination and hostile workplace. The courts and EEOC draw out distinctions that are worth noting with regard to humor compared with harassment.

There was no racial harassment in the oil rig case because race was not the underlying factor. The abuse was meted out without regard to an individual's race. Everyone was the target of the abuse but management did nothing to reverse or stop the practices. Most instructive is their conclusions about where the fun stops. Hazing is discussed.

How does harassment differ from hazing? Hazing is a ritual engaged in to determine whether new employees are trustworthy and able to stand up under stress and uncertainty. Employees who withstand the debasing experience receive “membership” in the work group as their reward. Hazing is usually carried out on an “equal opportunity” basis with sparing of few, if any, employees.

And then it is distinguished from harassment, which the author tells us, ". . . is more invidious. It involves singling out a person with the intention of discouraging the person’s company or continued employment, or of creating an unpleasant or hostile environment."

What We've Discovered

We should come away from this examination of establishing a prima facie case of discrimination is that there are different elements to each type of violation (which was stated at the beginning of this adventure). More importantly, management should not idly stand by and allow the violations to continue unabated - for whatever reason. Failure to do so will result in the company being liable and subject to fines.

But the critical step is for the plaintiff to adequately establish the required elements of their case. The other critical step is for the potential plaintiff to not allow the violations to continue. They should be addressed in an affirmative manner. There are many options for handling this before resorting to litigation.


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